“The Clean Power plan raises serious federalism concerns. It is well-established that it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the usual constitutional balance of federal and state powers….The states’ authority over the intrastate generation and consumption of energy is one of the most important functions traditionally associated with the police powers of the states….EPA’s interpretation of [the Clean Air Act] intrudes on that traditional state authority. By arrogating to itself the authority to choose favored and disfavored industries in the domestic energy field, EPA undermines the states’ authority to independently assess the intrastate need for new power facilities, their economic feasability, and rates and services.”

– Excerpt from a legal filing in the Supreme Court on January 26 by 29 states urging the Justices to block the Obama administration’s new Clean Power Plan that seeks to divert energy generation from plants fueled by coal and oil to plants powered by wind or solar, which EPA believes will benefit the environment by sharply reducing emissions of carbon dioxide.

WE CHECKED THE CONSTITUTION, AND…

It is a dominant theme of America’s modern history, at least since the New Deal days in the 1930s, that more and more government power continually shifts to the national government from the state governments. In recent years, that has been true especially in the energy field, with the growth of a closely interconnected electric grid managed by very large regional operators under the eye of the Federal Energy Regulatory Commission.

The Supreme Court newly validated that trend in a decision just this week, upholding a federal plan to pay big factories and large retail stores – who normally get their power from state-regulated sources – for reducing their use of energy during peak demand periods. That approach ties them much more closely to the federally regulated national electric grid and the wholesale energy market.

At the same that this shift has been occurring, however, the Supreme Court has been giving strong support to a new “federalism revolution,” a rediscovery of the states’ sovereign authority to manage their own affairs without federal superintendence or interference.

The court is well aware that the states had sovereign authority before the Union was ever formed in the 1790s. They assumed that status after the break with England in 1776, and they retained a good deal of that sovereignty under the Constitution – and, indeed, saw it explicitly safeguarded by the Tenth Amendment – usually thought of as the “states’ rights” amendment.

The Tenth Amendment got short shrift during President Franklin Roosevelt’s New Deal, with the robust growth of national authority in overcoming the Great Depression. But that amendment has gained new respect in the Justices’ revived effort in recent years to protect the dignity and stature of state governments.

Now, in another development this week in the nation’s energy sector, more than half of the states – 29 of them – have turned to the Supreme Court to protect them against what they are calling a new “power grab” by the federal Environmental Protection Agency. A plea for states’ rights, for federalism, is a key part of a new challenge they have mounted to one of the Obama administration’s most ambitious efforts to protect the environment from carbon pollution.

EPA’s new initiative, which it calls the “Clean Power Plan,” is a program to steadily reduce the energy industry’s dependence of power plants that burn coal or oil as fuel, and to shift to the “cleaner” process of generating electricity by the wind or the sun.

To bring about that switch, EPA’s plan would set specific limits on carbon dioxide emissions from power plants, and it would impose on states the initial duty to fashion plans to meet those reductions. If the states fail to do so, EPA has made clear it will step in and perform the task.

The 29 protesting states filed a federal court challenge against the new Power Plan right after it was unveiled by EPA last October. The federal appeals court in Washington, D.C., has set a speeded-up schedule for reviewing the plan’s legality under the Clean Air Act, but that court has refused to put the plan on hold while that review goes forward. The review would proceed well into the summer, it now appears, even under an expedited court schedule.

Arguing that the energy industry is already forced to begin making plans to obey the new Power Plan, including sizeable investments in new modes of electricity generation, the challenging states have turned to the Supreme Court to seek immediate relief.

They have laid before the Justices a fervent claim that the Clean Air Act does not even come close to authorizing EPA to adopt such a plan, with its “commandeering” of state governments as part of the implementation of the plan.

But they have sought to buttress that Clean Air Act argument with a sweeping claim based upon the Tenth Amendment concept of federalism, in the sense of protecting state prerogatives in areas that have traditionally been governed by state law and state regulatory rules. The states contended that they are being coerced into becoming a part of the new enforcement approach, and that this intrudes on their fundamental sovereign power to regulate electricity generation and transmission inside each state’s borders.

The two arguments are each aimed at a key figure on the Supreme Court. Justice Antonin Scalia has become one of the EPA’s strongest critics on the court, and has a strict view of that agency’s duty to stay within the limits of what Congress has assigned it to do. Justice Anthony M. Kennedy is the strongest champion on the court of state sovereignty, and the federalism argument obviously is designed to stir concern about the Power Plan.

This dispute will unfold over the next week or so, as the court ponders whether to get involved at this stage, or to take no action to interfere with the Power Plan as it gets reviewed by the federal appeals court in Washington. Sooner or later, though, the Justices themselves almost certainly will have to weigh in on the plan’s legality – if, of course, the plan survives the inauguration of a new president next January.

]]>http://blog.constitutioncenter.org/2016/01/constitution-check-does-the-clean-power-plan-violate-the-tenth-amendment/feed/0Constitution Check: Did the Supreme Court take away states’ power over marriage?http://blog.constitutioncenter.org/2015/09/constitution-check-did-the-supreme-court-take-away-states-power-over-marriage/
http://blog.constitutioncenter.org/2015/09/constitution-check-did-the-supreme-court-take-away-states-power-over-marriage/#respondTue, 08 Sep 2015 10:37:48 +0000http://blog.constitutioncenter.org/?p=39989Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at remarks made by a Tennessee judge that his court lacked the power to decide a divorce case because of the Supreme Court’s Obergefell decision.

THE STATEMENT AT ISSUE:

“What actually appears to be the intent and (more importantly) the effect of the Supreme Court ruling is to preempt state courts from addressing marriage/divorce litigation altogether….The conclusion reached by this court is that Tennesseans, corporately, have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage and, thereby, at a minimum, contested divorces. Consequently, since only our federal courts are wise enough to address the issues of marriage – and therefore contested divorces – it only follows that this court’s jurisdiction has been preempted.

– Excerpt from a decision on August 28 by Jeffrey M. Atherton, an elected judge in state Chancellor Court for Hamilton County, in Chattanooga, explaining his dismissal of a divorce case between an opposite-sex couple, Pamela and Thomas Bumgardner of Signal Mountain, Tenn.

WE CHECKED THE CONSTITUTION, AND…

From the time the Constitution went into effect more than two centuries ago, courts at both the federal and state levels have shared the authority to interpret what the words of that basic document mean, case by case. But two specific provisions can often determine how that authority is divided up: Article VI makes the Constitution and its interpretation as well as federal laws based on the Constitution supreme over state constitutions and laws, and the Tenth Amendment assigns to state governments all power not explicitly given to the federal government.

Since the Supreme Court’s 1803 decision in Marbury v. Madison, the Supreme Court has claimed the final word on what the Constitution means, so state provisions that conflict must yield to those interpretations. And a multitude of decisions by the Justices have interpreted the Tenth Amendment to protect the powers that states have traditionally used as part of government that operates closest to the people themselves.

As recently as two years ago, the Supreme Court in the case of United States v. Windsor ruled explicitly that state governments remain the primary authority to define marriage and its benefits. It did so in striking down the federal Defense of Marriage Act, which had denied federal marital benefits to same-sex couples who were legally married in their home states, under state law allowing such marriages.

This past June, in the case of Obergefell v. Hodges, the Supreme Court interpreted how that basic state power over marriages can be used constitutionally when it conflicts with a civil right guaranteed by the Constitution’s Fourteenth Amendment. The bans on same-sex marriage in Tennessee and other states, the ruling said, must yield to that Amendment’s guarantee of equality in how a law applies to the most intimate relationship between people – that is, the choice of a life partner in marriage.

The decisions in Windsor and Obergell, together, provide a classic illustration of how the Constitution operates along the boundary between national and state power, and between Article VI and the Tenth Amendment. Nothing in Obergefell defeats the continuing power of states to decide what benefits go with marriage, and to decide who can marry – so long as a state does not discriminate against people that the Constitution makes equal. And, by implication, it left entirely intact the power of states to write and enforce laws governing divorce – that is, when marriages may be ended.

A state judge in Tennessee who in late August interpreted the Obergefell decision as having withdrawn entirely his court’s power to decide a divorce case simply got that decision wrong. His reasoning was that the ending of Tennessee’s choice to exclude gays and lesbians from the marital institution went far beyond the question that was actually decided – that is, equal access to that institution (and, by implication, to divorce) – and actually achieved a complete federal takeover of the legal nature of that institution.

That is, in short, a political argument, not judicial reasoning. The Supreme Court actually had responded only to a plea to share the benefits of marriage (and, by implication, the option of divorce) with a category of individuals whom the court in a series of decisions over the years has treated as entitled to equal treatment under the Constitution.

From the Supreme Court’s view of the matter, this was an extension of the constitutional idea that race cannot be used as the basis for access to marriage (and divorce). The idea that people of different races cannot marry was ended by the court in 1967 in the case of Loving v. Virginia. Since then, the category of people who cannot be excluded from equal legal opportunity has been extended to gay people.

There is no doubt, of course, that the series of court rulings providing constitutional equality to homosexuals and their partners has brought about profound cultural change – and, perhaps, especially so since that trend has now reached the revered institution of marriage. That always is disturbing, in at least some ways, because it forces people to choose either to adapt or to continue to harbor a resentment.

As America tries, with some obvious discomfort, to adapt to the Obergefell decision, it is to be expected that some publicly elected officials (among others) are going to balk at adapting to that ruling. And judges who have to go before the voters from time to time are likely – at least now and then – to become among those who balk. In Chattanooga, Judge Atherton has balked.

When the full extent of his August 28 decision is examined, however, it is clear that his remarks about the effect of the Obergefell decision on Tennessee’s approach to marriage and divorce were actually not necessary to his decision. That is what lawyers and judges call “dicta,” or something like mere commentary.

After his lament about what he felt the Supreme Court had done, he conceded that he might be “found in error” about the loss of jurisdiction over all divorce cases, so he proceeded to make it clear that he would have denied divorce to Mr. and Mrs. Bumgardner anyway.

He applied the specific requirements of Tennessee law as it applies to divorce claims, and found that the couple had not satisfied those laws. He said they had not convinced him “that the parties’ relationship has disintegrated beyond salvaging and that their affection for each other is extinguished.”

The judge also declared flatly that each of the marital partners had lied to the court in their filings about crucial facts in their relationship, thus committing “fraud on the court.” And he found that the Bumgardners had not obeyed local court rules on what must be included in documents filed in a divorce case.

He sought to ease the displeasure of the ruling refusing divorce by pronouncing the couple, outside of this court case, as being “truly ‘good’ people.” But, he concluded, the Bumgardners had not proved “entitlement to relief” under the state’s laws. In the end, he said, he was “not convinced that this marriage is irretrievably broken” – a conclusion that conforms entirely to Tennessee’s own reasons for putting some limits on the option to divorce.

He thus had made his political point, even though he had no judicial need to do so.

]]>http://blog.constitutioncenter.org/2015/09/constitution-check-did-the-supreme-court-take-away-states-power-over-marriage/feed/0Supreme Court asks Justice Department to weigh in on legal marijuana lawsuithttp://blog.constitutioncenter.org/2015/05/supreme-court-asks-justice-department-to-weigh-in-on-legal-marijuana-lawsuit/
http://blog.constitutioncenter.org/2015/05/supreme-court-asks-justice-department-to-weigh-in-on-legal-marijuana-lawsuit/#respondMon, 04 May 2015 14:00:50 +0000http://blog.constitutioncenter.org/?p=38491On Monday morning, the United States Supreme Court asked the Solicitor General’s office for its opinion in a lawsuit involving three states about the commercial sales of marijuana for recreational use in Colorado.

Among the Court’s orders today was a CVSG (or call for the view of the Solicitor General) in the case of Nebraska and Oklahoma v. Colorado.

The lawsuit was brought by the state of Nebraska and Oklahoma last December, when their attorneys general asked the Supreme Court to rule on the legality of the Colorado’s legalized marijuana law, in an original jurisdiction case.

The two states said the Supreme Court was the only venue where they could seek relief under the Constitution’s Supremacy Clause, arguing that “the federal government has preeminent authority to regulate interstate and foreign commerce, including commerce involving legal and illegal trafficking in drugs such as marijuana.”

Nebraska and Oklahoma aren’t asking that Colorado now stop personal marijuana use or to go back to its previous laws that prosecuted marijuana use as a crime in the state. Instead, the two states wants Colorado’s plan disallowed by the Supreme Court that allows for commercial growing and distribution of marijuana with the state.

“[Nebraska and Oklahoma] suggest that the federal government will backfill the resulting regulatory vacuum, even though the Presidential Administration has indicated it lacks the resources and the inclination to fully enforce the federal marijuana ban; Congress has partially endorsed the Administration’s non-enforcement policy; and the States have, for the last four decades, carried out the vast majority of marijuana enforcement across the country,” said Colorado Attorney General Cynthia Coffman in March.

Four states and the District of Columbia have passed laws to make recreational pot use legal under certain circumstances. And 23 states and the federal district have legalized marijuana for medical use.

Colorado’s law was approved in a voter referendum in November 2012.

However, recreational and medical marijuana use is still illegal nationally under the Controlled Substances Act and it is listed under the Schedule 1 list of drugs, along with heroin and LSD.

The conflict between state laws that allow limited marijuana use and the federal law that bars it, in theory, falls somewhere in the domain of the Constitution’s Supremacy Clause.

The Court typically takes its time with original jurisdiction cases and at least four Justices will need to vote to accept the case for arguments, once the Solicitor General’s opinion is filed.

]]>http://blog.constitutioncenter.org/2015/05/supreme-court-asks-justice-department-to-weigh-in-on-legal-marijuana-lawsuit/feed/0Constitution Check: Are state courts bound by federal court rulings on same-sex marriage?http://blog.constitutioncenter.org/2015/01/constitution-check-are-state-courts-bound-by-federal-court-rulings-on-same-sex-marriage/
http://blog.constitutioncenter.org/2015/01/constitution-check-are-state-courts-bound-by-federal-court-rulings-on-same-sex-marriage/#respondThu, 29 Jan 2015 11:08:06 +0000http://blog.constitutioncenter.org/?p=37124Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at claims from an Alabama judge that harken back to the 1950s civil rights school desegregation decisions.

THE STATEMENT AT ISSUE:

“I am dismayed by those judges in our state who have stated they will recognize and unilaterally enforce a federal court decision which does not bind them. I would advise them that the issuance of [marriage] licenses [to same-sex couples] would be in defiance of the laws and constitution of Alabama. Moreover, I note that ‘United States district court decisions are not controlling authority in this court,’ [citing a 2009 decision of the Alabama Supreme Court]. See also [a 2008 state Supreme Court ruling] ‘This court is not bound by decisions of the United States Courts of Appeals or the United States District Courts.’ As chief justice of the Alabama Supreme Court, I will continue to recognize the Alabama constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment.”

– Alabama Chief Justice Roy S. Moore, in a letter January 27 to the state’s governor, Robert Bentley, urging him to join in an effort to “stop judicial tyranny and any unlawful opinions issued without constitutional authority.” The chief justice was reacting to two rulings by a federal District Court judge in Mobile, striking down the state’s ban on same-sex marriage.

WE CHECKED THE CONSTITUTION, AND…

For most of the life of the U.S. Constitution, there has been no doubt that both the courts at the federal level and those at the state level each have power to interpret what that Constitution means. There is, though, only one court – the U.S. Supreme Court – that has the final say on constitutional interpretation. And, when it makes such a decision, the Supremacy Clause in Article VI makes clear that the result is “the supreme law of the land” and no contrary state law can stand.

So, as of now, the state courts in Alabama are free to go their own way on an issue under the national Constitution even though a federal judge sitting in that state has decided that question. The issue is same-sex marriage. A case is now working its way through state courts on whether a state constitutional ban on such marriages violates the federal document. That is occurring simultaneously with the unfolding of two cases before a federal judge in Mobile. District Judge Callie V.S. Granade ruled the state ban unconstitutional.

Sooner or later, the separate case in state court may reach the Alabama Supreme Court. When it does, the reception it will get – at least from the chief justice of that court – is already quite clear. Chief Justice Roy S. Moore is now on record in public as indicating that Alabama’s ban must remain intact, no matter what the Mobile jurist thinks about it.

If that is what happens, it probably would come as a shock to much of America – although Judge Moore has a well-developed reputation for being an iconoclast who views law in his own special way. His actions sometimes are a reminder of the “massive resistance” in the South to the school desegregation decisions of the Supreme Court and lower federal courts.

But, on his point that the state courts do not have to follow the lead of a federal trial or appeals court on any issue of law, the chief justice is quite right. That is one of the oddities of a divided court regime – a federal system and a separate and quite independent state system.

It certainly is in keeping with the view of those Founders who, while creating a strong national government, did not want to destroy the state governments. The 10th Amendment was among the first changes made in the Constitution and that amendment, among other things, goes a long way to protect the sovereignty and the dignity of the states. It may fairly be said that the addition of that amendment was probably made necessary by the demands back then for something like it, demands that were a prominent feature in the state conventions that ratified the Constitution.

Chief Judge Moore, although right on the basic independence of the state judiciary, may well speak for few officials in state government in saying that it is “judicial tyranny” for a federal court to issue a decision striking down a provision of a state constitution. The 10th Amendment does not deny the authority of the federal courts to decide constitutional questions.

There is, of course, a significant body of law that requires the federal courts to show respect for the independence of the state courts. This goes by the name of “the law of abstention,” a series of Supreme Court rulings suggesting that, in some circumstances, a federal court should avoid deciding a case before it if a state court is already working on that issue. But those precedents do not prohibit the federal courts from enforcing the Constitution, even when doing so nullifies a sovereign act of a state government or of its people.

And, while decisions by the federal judge in Mobile nullifying Alabama’s ban on same-sex marriage do not actually bind any state court pondering the same question, such a federal court ruling, if directed to state officials, must be obeyed by them. If a state official has been properly sued in federal court, and is found to have violated the national Constitution, a federal judge has ample authority to order such an official to stop the violation. That is exactly what the Mobile federal judge did this week.

True, those officials might find themselves in something of a legal dilemma if a state court were to uphold Alabama’s same-sex marriage ban and order those officials to go on enforcing the ban, and that dilemma could have the appearance of a constitutional federal-state crisis.

The only place where such a constitutional crisis could be ended would be the Supreme Court. Its authority to say what the Constitution commands would settle the matter. Even Chief Judge Moore, in his defiant comment about the same-sex marriage rulings, did not suggest that the state courts could refuse to obey the Supreme Court.

(Note: The Southern Poverty Law Center, a liberal legal advocacy group, has filed a formal ethics complaint against Chief Justice Moore with the state Judicial Inquiry Commission, seeking his removal from the bench. The complaint notes that he was removed from the state court in 2003 for an ethical violation based upon defiance of the Constitution regarding the display of the Ten Commandments. After that, he ran for election anew, and was returned to the chief justiceship.)

]]>http://blog.constitutioncenter.org/2015/01/constitution-check-are-state-courts-bound-by-federal-court-rulings-on-same-sex-marriage/feed/0The Fourth Amendment: Cars, Phones, and Keys?http://blog.constitutioncenter.org/2014/04/the-fourth-amendment-cars-phones-and-keys/
http://blog.constitutioncenter.org/2014/04/the-fourth-amendment-cars-phones-and-keys/#respondSat, 26 Apr 2014 09:55:50 +0000http://blog.constitutioncenter.org/?p=32308Jim Harper from the Cato Institute, in this commentary, argues that police may rightly seize possession of your phone or car, but they may not put those items to whatever use they please.

Here’s a law-school hypothetical for you: Suppose a gang-banger is pulled over for having expired tags on his car. He has no driver’s license, and records show that he has repeatedly driven without a license. The protocol in such situations is to impound the car to prevent him from driving unlicensed again, and the impoundment search reveals that he has guns hidden in the car. He is arrested, patted down, and his possessions seized to secure officer safety during his transportation and booking.

Now suppose that police officers take the gang-banger’s car out of the impound yard and drive it around looking for his confederates and for more evidence against him. Can they use the car for this purpose?

If you’re like most people, you probably think the answer is: “No.” But can you say why?

In two cell-phone-seizure cases headed for Supreme Court argument on Tuesday, Ilya Shapiro and I have argued for a sharp delineation of the property right that government agents seize when they arrest a suspect and take control of his things. They may rightly seize possession of an article, but they may not therefore put that item to whatever use they please.

The first paragraph above describes the facts in Riley v. California, on which we briefed the Court last month. Government agents did not use Riley’s car to further investigate him, but they twice used his cell phone to gather more evidence of his wrongful behavior.

Though they had properly seized the physical phone, they did not get a warrant to search the phone’s contents, and we think that violates the Fourth Amendment. Phones today carry huge amounts of information that are equivalent to the papers, postal mail, books, drawings, and portraits of the founding era, which the Fourth Amendment was designed to protect.

The second case we filed on April 9. It’s called United States v. Wurie, and it’s a similar case, in which arresting officers seized an arrestee’s flip-phone. After it received calls identified on the exterior display screen as coming from “my house,” they opened his phone and looked to see what the number was so they could learn the address and take their investigation there. We argue that they were entitled to observe and take cognizance of the information the phone put in plain view, but having seized the phone didn’t entitle them to use the phone for further investigation without a warrant—even though it seemed to provide easy access to interesting evidence.

They didn’t get a warrant to search at Wurie’s house either. They took his keys, which they had also seized upon his arrest, and used them to open the door to the vestibule of his duplex apartment, then test the lock on a second floor residence. The keys unlocked the door of the first-floor apartment, behind which was a woman and her baby.

Possession of those keys didn’t entitle government agents to go use them on the doors of two houses, even to turn the locks and confirm or deny their suspicions about Wurie’s residency.

The use of the keys is not an issue in the case, but it helps illustrate the difference between possession and use. When an item is taken from an arrestee in the interest of officer safety and preventing destruction of evidence, this does not entitle law enforcement officer’s to use it any way they please. Government agent’s use of Wurie’s cell phone to investigate him was an additional seizure beyond the taking of possession that happened when he was arrested. It should have required a warrant because of the volume of personal and private information—digital papers and effects—that cell phones access and store.

It may be easier to argue that cell phones shouldn’t be searched without a warrant because that violates a “reasonable expectation of privacy”—and it probably does—but that has not proven to be a constitutional test that courts can reliably administer. It is as likely to produce bad results as good ones because it puts judges in the role of making sweeping statements about societal values rather than determining the facts and law in individual cases.

If we can convince the Court to flex some atrophied property muscles and recognize the difference between taking possession of a thing and making use of it, this could be the basis of stronger Fourth Amendment law, in which the courts apply the terms of the law to the facts of cases rather than pronouncing rules based on soaring, untethered doctrine like the “reasonable expectation of privacy” test.

Cato senior fellow Jim Harper works to adapt law and policy to the unique problems of the information age, in areas such as privacy, telecommunications, intellectual property, transparency, and security. From 2004 to 2014, Harper was director of information policy studies at Cato. In 2014 he became a Cato senior fellow and global policy counsel at the Bitcoin Foundation.

]]>http://blog.constitutioncenter.org/2014/04/the-fourth-amendment-cars-phones-and-keys/feed/010th Amendment: Rights Reserved to States or Peoplehttp://blog.constitutioncenter.org/2014/02/10th-amendment-rights-reserved-to-states-or-people-2/
http://blog.constitutioncenter.org/2014/02/10th-amendment-rights-reserved-to-states-or-people-2/#respondMon, 10 Feb 2014 11:00:25 +0000http://blog.constitutioncenter.org/?p=31140As part of the National Constitution Center’s 27 Amendments (In 27 Days) project, each day we will look at a constitutional amendment. Through partnerships with leading scholars and universities, government agencies, media outlets, and more, the National Constitution Center will profile one amendment each day throughout the month of February.

Full Text of the Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Synopsis:

The federal government is the recipient of constitutionally delegated powers. What is not delegated remains in the states or in the people. Source: U.S. Senate

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Synopsis:

The federal government is the recipient of constitutionally delegated powers. What is not delegated remains in the states or in the people. Source: U.S. Senate

Interpretation:

The Tenth Amendment was included in the Bill of Rights to further define the balance of power between the federal government and the states. The amendment says that the federal government has only those powers specifically granted by the Constitution. These powers include the power to declare war, to collect taxes, to regulate interstate business activities and others that are listed in the articles.

Any power not listed, says the Tenth Amendment, is left to the states or the people. Although the Tenth Amendment does not specify what these “powers” may be, the U.S. Supreme Court has ruled that laws affecting family relations (such as marriage, divorce, and adoption), commerce that occurs within a state’s own borders, and local law enforcement activities, are among those specifically reserved to the states or the people. Source: Annenberg Classroom

]]>http://blog.constitutioncenter.org/2013/12/10th-amendment-rights-reserved-to-states-or-people/feed/0Judge picks Supremacy Clause in Detroit’s bankruptcy battlehttp://blog.constitutioncenter.org/2013/12/judge-picks-supremacy-clause-in-detroits-bankruptcy-battle-2/
http://blog.constitutioncenter.org/2013/12/judge-picks-supremacy-clause-in-detroits-bankruptcy-battle-2/#respondTue, 03 Dec 2013 19:44:20 +0000http://blog.constitutioncenter.org/?p=30083Federal bankruptcy Judge Steven Rhodes said on Tuesday that Detroit can possibly cut pensions for city workers as part of its bankruptcy proceedings, despite a Michigan constitutional provision that prevents such actions.

“Pension benefits are a contractual right and are not entitled to any heightened protection in a municipal bankruptcy,” Rhodes said in a 140-page ruling.

“Pension rights are contract rights under the Michigan constitution,” Rhodes said as he declared Detroit insolvent and eligible for bankruptcy. “It has long been understood that bankruptcy law entails the impairment of contracts.”

Detroit’s bankruptcy case is the latest in a series of high-profile power conflicts between the federal government and states with constitutional roots.

This time, the attorneys for the government workers facing the possible cuts say Rhodes’ decision has national implications.

Bruce Babiarz, a spokesman for the Police and Fire Pension System, said in the New York Times on Tuesday that the Michigan Constitution protected the workers’ pensions, which should be considered separately from other contracts.

“This is one of the strongest protected pension obligations in the country here in Michigan,” Babiarz said. “If this ruling is upheld, this is the canary in a coal mine for protected pension benefits across the country. They’re gone.”

And there were indications last month that Detroit’s employee pension systems were prepared to appeal the case as far as the U.S. Supreme Court.

The Detroit News said the pension systems retained lawyers with federal bankruptcy and Supreme Court experience, in case an appeal was needed. And within hours of Tuesday’s decision, an appeal was made to U.S. district court on behalf of the city’s unions.

Detroit had filed for Chapter 9 bankruptcy protection in July, claiming more than $18 billion in debts (including more than $8 billion in pension and retiree health-care liabilities).

The state’s governor and a city manager approved the move, but a state court then said the bankruptcy filing violated the Michigan state constitution.

The Detroit case set up a courtroom battle between different parts of the Constitution.

The Supremacy Clause in Article VI of the Constitution states that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

However, the 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The attorneys for pension funds, unions and other creditors wanted state courts in Michigan take up the legality of the bankruptcy filing. Instead, the fight will happen in the federal court system.

“As I’ve written any number of times … no federal bankruptcy court has ruled whether municipalities may cut pension benefits through a Chapter 9 plan. The issue pits the Supremacy Clause and the Bankruptcy Code against the Contract Clause and the 10th Amendment, which reserves to states the right to manage their own affairs,” she said.

For now, Rhodes wants to see the city’s final reorganization plan before he rules that the entire plan is fair and equitable. So there is no guarantee that pension cuts will be in the final deal.

]]>http://blog.constitutioncenter.org/2013/12/judge-picks-supremacy-clause-in-detroits-bankruptcy-battle-2/feed/0Judge picks Supremacy Clause in Detroit’s bankruptcy battlehttp://blog.constitutioncenter.org/2013/12/judge-picks-supremacy-clause-in-detroits-bankruptcy-battle/
http://blog.constitutioncenter.org/2013/12/judge-picks-supremacy-clause-in-detroits-bankruptcy-battle/#respondTue, 03 Dec 2013 13:04:44 +0000http://blog.constitutioncenter.org/?p=30115Federal bankruptcy Judge Steven Rhodes said on Tuesday that Detroit can possibly cut pensions for city workers as part of its bankruptcy proceedings, despite a Michigan constitutional provision that prevents such actions.

“Pension benefits are a contractual right and are not entitled to any heightened protection in a municipal bankruptcy,” Rhodes said in a 140-page ruling.

“Pension rights are contract rights under the Michigan constitution,” Rhodes said as he declared Detroit insolvent and eligible for bankruptcy. “It has long been understood that bankruptcy law entails the impairment of contracts.”

Detroit’s bankruptcy case is the latest in a series of high-profile power conflicts between the federal government and states with constitutional roots.

This time, the attorneys for the government workers facing the possible cuts say Rhodes’ decision has national implications.

Bruce Babiarz, a spokesman for the Police and Fire Pension System, said in the New York Times on Tuesday that the Michigan Constitution protected the workers’ pensions, which should be considered separately from other contracts.

“This is one of the strongest protected pension obligations in the country here in Michigan,” Babiarz said. “If this ruling is upheld, this is the canary in a coal mine for protected pension benefits across the country. They’re gone.”

And there were indications last month that Detroit’s employee pension systems were prepared to appeal the case as far as the U.S. Supreme Court.

The Detroit News said the pension systems retained lawyers with federal bankruptcy and Supreme Court experience, in case an appeal was needed. And within hours of Tuesday’s decision, an appeal was made to U.S. district court on behalf of the city’s unions.

Detroit had filed for Chapter 9 bankruptcy protection in July, claiming more than $18 billion in debts (including more than $8 billion in pension and retiree health-care liabilities).

The state’s governor and a city manager approved the move, but a state court then said the bankruptcy filing violated the Michigan state constitution.

The Detroit case set up a courtroom battle between different parts of the Constitution.

The Supremacy Clause in Article VI of the Constitution states that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

However, the 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The attorneys for pension funds, unions and other creditors wanted state courts in Michigan take up the legality of the bankruptcy filing. Instead, the fight will happen in the federal court system.

“As I’ve written any number of times … no federal bankruptcy court has ruled whether municipalities may cut pension benefits through a Chapter 9 plan. The issue pits the Supremacy Clause and the Bankruptcy Code against the Contract Clause and the 10th Amendment, which reserves to states the right to manage their own affairs,” she said.

For now, Rhodes wants to see the city’s final reorganization plan before he rules that the entire plan is fair and equitable. So there is no guarantee that pension cuts will be in the final deal.

]]>http://blog.constitutioncenter.org/2013/12/judge-picks-supremacy-clause-in-detroits-bankruptcy-battle/feed/0What do cheater’s revenge and plastic guns have in common?http://blog.constitutioncenter.org/2013/11/what-do-cheaters-revenge-and-plastic-guns-have-in-common/
http://blog.constitutioncenter.org/2013/11/what-do-cheaters-revenge-and-plastic-guns-have-in-common/#respondTue, 05 Nov 2013 10:40:43 +0000http://blog.constitutioncenter.org/?p=29494Nick Dranias from the Goldwater Institute looks at the broader implications of the Bond v. the United States case, and if a potential Supreme Court decision could very well prove to be the “break-out” moment for unlimited federal power.

Bond v. the United States is already famous for its bizarre fact pattern in which a Chemical Weapons Treaty was invoked by the federal government to prosecute an estranged wife’s use of common household chemicals to exact revenge on a cheating husband and his girlfriend.

In short, Carol Anne Bond was federally prosecuted for causing minor burns to the fingers of her husband’s girlfriend after spreading around her home a caustic chemical used in developing photographs. According to the federal government, this act of intrastate domestic violence violated the letter of the law passed by Congress to implement the Chemical Weapons Treaty.

In an earlier phase of the litigation, Justice Samuel Alito asked, “Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend’s goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn’t it?”

The apparently absurd affirmative answer to this question led to Ms. Bond winning the first round, when the Supreme Court unanimously reinstated her 10th Amendment defense after the lower court rejected it on procedural grounds. Her case then returned to the lower courts, only to result in the Third Circuit embracing absurdity and rejecting her defense on the merits. According to the Third Circuit, Congress was fully within its power to turn “each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.”

It is now well-known what happened next; the Court accepted certiorari of Ms. Bond’s appeal—and the Goldwater Institute and many other public interest groups filed amicus briefs in support of her position.

Fewer know that just as amicus briefings went to print in Bond, the Guardian reported that the State Department shut down a website that distributed blueprints for 3-D printing a plastic gun, citing international agreements. A coincidence, no doubt, but the two cases are intimately connected from a constitutional perspective.

In both instances, promises made to foreign nations have been invoked to override our Constitutional guarantees. In the case of the blueprint gag order, those promises resulted in censorship. In the case of Bond, a treaty could erase what little remains of the jurisdictional line between our state and federal governments.

Sure, there is a difference between treaties and international agreements, but both cases highlight that the difference matters little to a federal government that is intent on expanding its power.

Simply put, there is a growing danger that the embrace of international norms could negate what makes America truly exceptional—its foundational commitment to a federal government of limited and enumerated powers. But what makes the issues in Bond especially concerning is that the federal government appears to be gunning for a Wickard-like expansion of the scope of its treaty power through the Necessary and Proper Clause.

If the Supreme Court decides that Congress has implied power under a Chemical Weapons Treaty to reach domestic violence between husbands, wives and paramours under the Necessary and Proper Clause, Bond could very well prove the “break-out” moment for unlimited federal power.

This is because if legislative implementation of an otherwise valid treaty is unbound by the 10th Amendment, there is no principled argument to stop the federal government from displacing any other constitutional guarantee or structure through the combination of international treaty and legislation.

The vertical separation of powers, after all, is not a second-class constitutional protection. Our system of dual sovereignty is just as essential to protecting liberty as the Constitution’s horizontal separation of powers and its affirmative guarantees of individual liberty. These features are interlocking components of an overall mechanism that cannot function as designed without each component maintaining its integrity. A threat to one is a threat to all. That is why a bright line must be drawn at the threshold of kitchen cupboards, cleaning cabinets, and fishbowls when it comes to implied congressional power under a Chemical Weapons Treaty.

Bond must not become the “break-out” moment in which promises made to foreign nations yield unlimited federal power.

Nick Dranias is Director of Policy Development and Constitutional Government at the Goldwater Institute. Dranias led the Institute’s successful challenge to Arizona’s system of government campaign financing to the U.S. Supreme Court. Dranias also serves on the board of Compact for America, Inc., which is urging the states to advance a Balanced Budget Amendment using an interstate compact.